Jeffrey Schulken, et al v. Washington Mutual Bank

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER RE: TRANSCRIPTS

On January 28, 2012, Appellant Donald R. Earl ("Mr. Earl") filed a Notice of Appeal of 20 four Orders of this Court, alleging inadequate representation by lead plaintiffs, a "disproportionate" 21 settlement distribution, and an inadequate opt-out notice. ECF No. 238. *fn1

In order to submit a complete supplemental excerpt of the record on appeal, Plaintiffs-Appellees Jeffrey and Jenifer Schulken ("Plaintiffs-Appellees") continue to seek copies of the 24 following transcripts: (1) October 13, 2011 Transcript of Hearing on Revised Motion to Certify 25 Class; (2) July 19, 2012 Transcript of Hearing on Motion for Preliminary Approval of Class Action 26 Settlement Agreement; and (3) November 8, 2012 Transcript of Hearing on Motion for Final 2

On April 2, 2013, this Court ordered Mr. Earl to arrange payment for the requested transcripts, or to certify an explanation of his refusal to do so within 5 days of this Order, pursuant 5 to Circuit Rule 10-3.1(f). ECF No. 59. On April 10, 2013, Mr. Earl filed a document captioned 6 "Objector, Donald R. Earl's Circuit Rule 10-3.1(f) Certificate," ("Certification"), alleging that the 7 requested transcripts are "unnecessary," for the appeal, and "do not aid review of the issues to be 8 considered." ECF No. 261.*fn2 Mr. Earl further argues that the requested transcripts are 9 overinclusive. See id. at 6.

On April 24, 2013, Plaintiffs-Appellees filed a Response and Cross-Motion to Compel Earl to Order and Pay for Transcripts, ("Response"), ECF No. 262. Plaintiffs-Appellees argue that Mr. Earl "does not (and cannot) explain how or why Plaintiffs' requested transcripts (of the hearings on 13 Plaintiffs' motions for class certification and for preliminary and final approval of the settlement) 14 are not necessary for the resolution of his appeal of each of the Court's Orders stemming from 15 those hearings." Response at 1. Specifically, Plaintiffs-Appellees argue that each requested 16 transcript is directly relevant to the issues raised in Mr. Earl's appeal, as enumerated below: 17

(1) Mr. Earl has appealed the class certification Order, claiming that the Court certified an 18 overly broad class. See Response at 5; ECF No. 238-2, Mr. Earl's Statement of the Issues on 19 Appeal ("Statement of the Issues"), at 1. Plaintiffs-Appellees argue that the transcript of the 20 October 13, 2012 hearing will show that the Court fully considered the rights of class members, 21 including class members such as Mr. Earl, before certifying the class. See Response at 5. 22

(2) Mr. Earl's appeal alleges that this Court approved a class action Settlement that violates 23 the due process rights of the entire class and subclass. See Response at 6; Statement of the Issues 24 at 2. Plaintiffs-Appellees argue that the transcript of the July 19, 2012 hearing on Plaintiffs-25

Appellees' motion for preliminary approval of the settlement will reflect that the Court "carefully 26 considered the rights of the class and relief offered under the settlement, as well as the process 27 through which the settlement was reached." See Response at 6. 28

(3) Mr. Earl's appeal challenges the terms of the settlement as disproportionate. See Response at 6; Statement of the Issues at 2. Plaintiffs-Appellees argue that the transcript of the 3 November 8, 2012 final fairness hearing will show that the Court fully considered Earl's objections 4 at the fairness hearing and found them to be meritless. See Response at 6. 5 Plaintiffs-Appellees further argue that the requested transcripts are not overinclusive, 6 because "Plaintiffs seek transcripts of hearings where the only topic of discussion was Plaintiffs' 7 motion and therefore the entire transcript may be relevant to the issues presented." Response at 7. 8

In light of Plaintiffs-Appellees arguments that the three requested transcripts are necessary 9 to the appeal and Mr. Earl's certification to the contrary, Circuit Rule 10-3.1(f) provides that the 10 Court shall determine which party shall pay for which portions of the transcript. The Rule 11 provides:

If appellee notifies appellant that additional portions of the transcript are required pursuant to Circuit Rule 10-3.1(b), appellant shall make arrangements with the court reporter to pay for these additional portions unless appellant certifies that they are unnecessary to the appeal and explains why not. If such a certificate is filed in the district court, with copies to the court reporter and this Court, the district court shall determine which party shall pay for which portions of the transcript.

Neither party cites any precedent that would guide the Court in determining which party shall pay for which portions of the transcript. Because the Court finds that the requested transcripts 18 are necessary to a complete record in reviewing the issues Mr. Earl has identified in his appeal, the Court hereby orders that Mr. Earl shall immediately make arrangements to pay for the requested 20 transcripts. 21

The parties shall seek any necessary extensions from the Appellate Court as provided under Circuit Rule 10-3.1 with respect to the Transcript Order deadline. 23

IT IS SO ORDERED.

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